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APPEAL NAOMI I. MARTIN FROM AN ORDER BOARD SUPERVISORS WEST HEMPFIELD TOWNSHIP. BOARD SUPERVISORS WEST HEMPFIELD TOWNSHIP (01/16/78)

decided: January 16, 1978.

IN RE: APPEAL OF NAOMI I. MARTIN FROM AN ORDER OF THE BOARD OF SUPERVISORS OF WEST HEMPFIELD TOWNSHIP. BOARD OF SUPERVISORS OF WEST HEMPFIELD TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lancaster County in case of In Re: Appeal of Naomi I. Martin, Trust Book No. 43, Page 448.

COUNSEL

O. Howard Mummau, for appellant.

Kenelm L. Shirk, III, with him Shirk, Reist & Buckwalter, for appellee.

Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 304]

The issue in this case is that of whether the transcript of the hearing conducted by a municipality subject to the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq., required to be certified as part of the record on the landowner's appeal to common pleas, must be prepared at the expense of the municipality or at the expense of the landowner.

The West Hempfield Township, Lancaster County, Board of Supervisors conducted hearings in the matter

[ 33 Pa. Commw. Page 305]

    of Naomi I. Martin's challenge to the validity of, and request for a curative amendment to, the township's zoning ordinance pursuant to Section 1004, subsection (1)(b) and (2)(d) of the MPC, 53 P.S. § 11004(1)(b), (2)(d). A stenographic record of the hearings was made but no transcript was prepared. The Supervisors, without findings, discussion or conclusions, dismissed Martin's challenge and denied her request for curative amendment. Martin appealed to the court below. The record certified by the township did not include a transcript and Martin filed a motion that the township be required at its expense to cause a transcript to be prepared. The township answered that Martin should pay for the transcript. The court below, after argument, decided the issue in Martin's favor and directed the township to produce the transcript. We affirm.

Before the extensive changes and additions to the MPC made by the Act of June 1, 1972, P.L. 333, then Section 1007 read in full as follows:

Transcript of Board Testimony. -- The appellant, before proceeding to hearing or argument upon the zoning appeal shall obtain and file with the court a transcript thereof.

This provision was entirely removed by the 1972 amendments and present Section 1007 deals with entirely different subjects. Section 1008 of the MPC before the 1972 amendments dealt with the subject of supersedeas only. Section 1008 as rewritten by the amendments treats supersedeas by a Subsection (4). Subsection (2) of Section 1008 was new and reads as follows:

Upon filing of a zoning appeal, the prothonotary or clerk shall forthwith as of course, send to the governing body, board or agency whose decision or action has been appealed, by ...


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